The Committee of Ministers, under the terms of Article 32 (art. 32) of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter referred to as "the Convention"),
Having regard to the report drawn up by the European Commission of Human
Rights in accordance with Article 31 (art. 31) of the Convention relating to the
application lodged on 21 May 1990 by Mr Mehmet Erdagöz against Turkey
(Application No. 17128/90);
Whereas on 10 May 1993 the Commission transmitted the said report to the
Committee of Ministers and whereas the period of three months provided for in
Article 32, paragraph 1 (art. 32-1), of the Convention has elapsed without the
case having been brought before the European Court of Human Rights in pursuance
of Article 48 (art. 48) of the Convention;
Whereas in his application, as declared admissible by the Commission on 10
July 1991, the applicant complained that he had been subjected to ill-treatment
while held in police custody;
Whereas in its report adopted on 8 April 1993 the Commission expressed,
unanimously, the opinion that there had been a violation of Article 3 (art. 3)
of the Convention;
Whereas, at the 499th meeting of the Ministers' Deputies held on 15
October 1993, the Committee of Ministers, agreeing with the opinion expressed by
the Commission, held, having voted in accordance with the provisions of Article
32, paragraph 1
(art. 32-1), of the Convention, that there had been in this case a violation of
Article 3 (art. 3) of the Convention;
Whereas the Committee of Ministers examined the proposals made by the
Commission when transmitting its report as regards just satisfaction to be
awarded to the applicant, proposals supplemented by a letter of the President of
the Commission dated 3 March 1995;
Whereas, at the 539th meeting of the Deputies, held on
7 June 1995, the Committee of Ministers decided, in accordance with Article 32,
paragraph 2 (art. 32-2), of the Convention, that the Government of Turkey was to
pay the applicant as just satisfaction, within three months, in Turkish lire,
tax deducted and equivalent on the date of payment to 300 000 French francs in
respect of
non-pecuniary damage and 10 000 French francs in respect of costs and expenses,
namely a total sum of 310 000 French francs;
Whereas the Committee of Ministers invited the Government of Turkey to
inform it of the measures taken following its decisions of 15 October 1993 and 7
June 1995, having regard to Turkey's obligation under Article 32, paragraph 4
(art. 32-4), of the Convention to abide by them;
Whereas, during the examination of the case by the Committee of Ministers,
the Government of Turkey gave the Committee information about the measures taken
in consequence of the Committee's decisions, which information appears in the
appendix to this resolution;
Whereas the Committee of Ministers satisfied itself that on
28 September 1995 the Government of Turkey paid the applicant the total sum of
310 000 French francs as just satisfaction,
Declares, having taken note of the measures taken by the Government of
Turkey, that it has exercised its functions under Article 32 (art. 32) of the
Convention in this case;
Authorises the publication of the report adopted by the Commission in this
case.
Appendix to Resolution DH (96) 17
Information provided by the Government of Turkey
during the examination of the case of Erdagöz
by the Committee of Ministers
Ill-treatment is forbidden under Turkish law, inter alia by Article 17 of
the constitution (which enshrines the right to life and prohibits torture and
inhuman and degrading punishments and treatments), Articles 243 (according to
which the use of
ill-treatment in order to obtain a confession is a crime) and 245 (which defines
as a crime all use of unlawful force by an official when charged with an
enforcement mission as well as the recourse to any kind of ill-treatment in the
carrying out of the mission) of the Turkish Criminal Code.
Moreover, four series of measures have been adopted in the course of the
last years in order to harden the struggle against all practices of ill-
treatment and torture.
1. Legislative provisions with the aim of strengthening the judicial
guaranties against ill-treatment
The numerous amendments to the Code of Criminal Procedure (CCP), which
entered into force on 1 December 1992, have substantially strengthened the
judicial guaranties surrounding police custody. Some of the most important
amendments can be summarised as follows:
- the maximum length of police custody has been reduced from
forty-eight hours to twenty-four hours, this period can be extended up to four
days in cases concerning offences committed by at least three persons (Article
128/1, 2 of the CCP);
- the person remanded in custody shall have the right to be assisted by a lawyer
during his interrogation (Articles 136-143 of the CCP) and to speak or
correspond freely with his lawyer
(Article 144 of the CCP);
- the person remanded in custody, his lawyer or his family shall have the right
to appeal against any extension from twenty-four hours to four days of the
police custody (Article 128/4 of the CCP);
- abusive methods of interrogation such as torture, ill-treatment, the forced
administering of chemicals, assault, violence or the use of certain physical or
psychological means or interferences capable of altering a person's free
exercise of his or her will, and the promise of unlawful advantages are
explicitly forbidden (Article 135a/1 and 2 of the CCP);
- confessions obtained by force cannot be used as motivation for a judgment
(Articles 135a/3 and 254/2 of the CCP).
2. Statutory measures
Numerous recently adopted administrative measures remind the different
levels of the administration of the legislative amendments to the CCP, specify
the methods to be observed in order to ensure fully the application of the
legislation, or contain new norms explaining the existing provisions. Some of
these measures should be noted especially:
- the Health Ministry's circular of 22 December 1993 providing for specific
norms to be observed when drawing up forensic reports;
- the Prime Minister's circular of 13 February 1995, sent to the Ministry of
Home Affairs and subsequently to all departments falling under the Ministry of
Home Affairs, underlining the necessity to show strict respect for the CCP and
to take immediate legal action against civil servants who do not respect these
provisions;
- the Ministry of Home Affairs' regulation, of 3 July 1995, providing at the
level of central as well as departmental police structures for the establishment
of "Units of Police Custody Supervision" as from 1 August 1995, with the aim of
providing information on persons remanded in custody to their relatives or other
interested bodies;
- the regulation of 8 December 1995 on interrogations and the taking of evidence
during police custody.
3. Educational measures and professional training
Besides the usual human rights education provided in the police academies,
vocational training courses on interrogation methods have been obtained, with
the assistance of the Council of Europe, in certain European countries.
Study visits on modern interrogation methods by scientific
pluridisciplinary delegations have taken place in European capitals.
Since March 1995 officers and sub-officers of the gendarmerie receive
human rights education.
4. Contribution of the Constitutional Court
In its judgment of 27 January 1993, the Constitutional Court has annulled
Article 15/3 of the Law on the Combat against Terrorism, according to which
legal action against members of the security forces could only be taken after
preliminary administrative proceedings against the officers had taken place.
______
The sum of 310 000 French francs, converted into Turkish lire, namely 2
916 237 000 Turkish lire, has been paid to the applicant on 28 September 1995.
The Government of Turkey considers that by adopting these different
measures it has complied with its obligations under Article 32 (art. 32) of the
Convention.
Full & Egal Universal Law Academy